Citation Nr: 0314166
Decision Date: 06/27/03 Archive Date: 07/03/03
DOCKET NO. 98-19 477 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in St. Paul,
Minnesota
THE ISSUES
1. Whether new and material evidence has been received to
reopen a claim of entitlement to service connection for a
left knee disability, other than a laceration scar of the
left knee, to include as secondary to the service-connected
left knee laceration scar.
2. Entitlement to a compensable evaluation for a laceration
scar of the left knee.
REPRESENTATION
Appellant represented by: Theodore C. Jarvi, Attorney at
Law
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Eric S. Leboff
INTRODUCTION
The veteran had active service from November 1952 until
September 1954. This matter comes before the Board of
Veterans' Appeals (BVA or Board) from October 1998 and
January 1999 rating decisions of the Department of Veterans
Affairs (VA), Regional Office (RO) in St. Paul Minnesota.
REMAND
On November 9, 2000, the President signed into law the
Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No.
106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.
§§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002)).
VCAA includes an enhanced duty on the part of VA to notify a
claimant of the information and evidence necessary to
substantiate a claim for VA benefits and which evidence, if
any, the veteran is expected to obtain and submit, and which
evidence will be retrieved by VA. See 38 U.S.C.A. § 5103(a)
and (b) (West 2002). Also see Quartuccio v. Principi, 16
Vet. App. 183, 187 (2002). VCAA is applicable to all claims
filed on or after the date of enactment, November 9, 2000, or
filed before the date of enactment and not yet final as of
that date. 38 U.S.C.A. 5107. See also Karnas v. Derwinski,
1 Vet. App. 308 (1991).
It is observed that in a June 2002 decision, the Board denied
both issues on appeal. However that decision was vacated by
Court Order issued in December 2002. The Court found that
the veteran had never been properly notified as to what
evidence he was required to submit and what evidence VA would
attempt to secure on his behalf, and that therefore the duty
to assist had not been satisfied.
Additionally, it is noted that during the course of the
appeal, the regulations governing skin disabilities have
undergone revision. The claims file does not demonstrate
that the veteran was apprised of the change in the law.
Accordingly, the case is hereby REMANDED to the RO for the
following actions:
1. The RO should take appropriate action
in this case to comply with the notice
and duty to assist provisions of
38 U.S.C.A. § 5103(a) and (b), to include
with regard to the one-year period for
receipt of additional evidence.
2. The RO should then readjudicate all
issues, considering any newly submitted
evidence. With respect to the veteran's
increased rating claim for a laceration
scar of the left knee, both the old
version of 38 C.F.R. § 4.118 and the
revised version, effective August 30,
2002, must be contemplated. See 67 Fed.
Reg. 49590-49599 (July 31, 2002); 67 Fed.
Reg. 58448-58449 (Sept. 16, 2002).
Moreover, if the benefits sought on
appeal remain denied, the appellant and
his representative should be furnished an
appropriate supplemental statement of the
case and be provided an opportunity to
respond. Such supplemental statement of
the case should specifically include the
revised version of the skin regulations.
Thereafter, the case should be returned
to the Board for further appellate
consideration, as appropriate.
The appellant has the right to submit additional evidence and
argument on the matters the Board has remanded to the
regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
_________________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2002).